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McGowan v. Prince George's County

United States District Court, D. Maryland

August 9, 2019

FRANK LEE McGOWAN, pro se, Plaintiff
v.
PRINCE GEORGE'S COUNTY, MARYLAND, et al., Defendants.

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Frank Lee McGowan, pro se, brings this suit against Prince George's County, Maryland Police Officers Michael Marriott, Jose Pina, Antonio Debarros, and Chad Schmick, and, ostensibly, against the County itself, [1] alleging several constitutional violations and tortious actions stemming from his arrest on January 16, 2015. The Police Officers and Prince George's County have filed a Motion for Summary Judgment, which has been fully briefed. For the following reasons, the Court GRANTS-IN-PART and DENIES-IN-PART the Motion (ECF No. 65).

         I. Factual and Procedural Background

         The facts, drawn from McGowan's Amended Complaint (ECF No. 21), his deposition as cited in Defendants' Motion for Summary Judgment (ECF No. 65), and McGowan's response to the request for admissions (ECF No. 67), appear to be as follows:

         On January 16, 2015, McGowan was employed as a Courier. ECF No. 65-3 (Ex. B (McGowan Deposition)) at 30. After a long day of work, he and his friend Kakai Namasaka decided to visit a bar in Hyattsville, Prince George's County, Maryland. ECF No. 21 ¶ 2; ECF No. 65-3 (Ex. C (Namasaka Deposition)) at 36.[2] First, they drove together to a store, where Mr. Namasaka bought a beer. Id.; ECF No. 67 at 3; ECF No. 65-3 at 47 (Ex. D (photograph of a single Bud Ice beer can found in McGowan's car)[3]). Upon re-entering McGowan's vehicle, they drove to the bar. ECF No. 65-3 at 38, ECF No. 67 at 3. Once they parked in the parking lot, they sat peacefully in McGowan's car. ECF No. 21 ¶ 3.

         While they were sitting, parked, outside the bar, Namasaka was drinking his beer.[4] ECF No. 67 at 3. At that point two cars, one a marked police car with its lights on and the other presumably unmarked, approached McGowan's car from an adjacent parking lot and blocked his vehicle in, preventing its departure from the parking lot. ECF No. 21 at ¶ 4; ECF No. 65-3 at 12.

         From both sides of the car, four plainclothes officers approached McGowan's vehicle and told him and Namasaka to get out of the car. ECF No. 21 at ¶¶ 4-6; see ECF No. 65-1 at 6; ECF No. 65-3 at 43.[5] The plainclothes officer who approached McGowan's side of the car and ordered him out of the car was wearing a fleece jacket. Id. at 14. As he was told to exit the vehicle, McGowan asked that plainclothes officer whether he was a police officer. Id. McGowan says the officer responded “yeah, yeah, yeah, get out of the car.” ECF No. 65-3 at 14.

         Then, as McGowan started to get out of the car, the officers grabbed his wrist and twisted it behind his back, telling him that he was being arrested for resisting arrest. ECF No. 21 ¶ 7; ECF No. 65-3 at 15. McGowan was pushed up against his car with his left arm twisted high along his back, such that his foot left the ground. He claims he was handcuffed and struck on the back of his legs so that he fell. Id. at 17-19; see also ECF No. 21 at ¶¶ 19-20. He says he remains injured to this day.

         The officers then searched McGowan's car and his person, in the process seizing his driver's license. ECF No. 21 ¶ 7. When the officers searched McGowan's car, they supposedly found what they claimed appeared to be marijuana or marijuana residue in a clear, foldable sandwich bag. McGowan says there was no marijuana in the car.[6] ECF No. 65-3 at 18.

         McGowan was thereafter arrested and taken to the District I jail facility, where he was detained overnight. ECF No. 21 at ¶ 15. His car was not impounded; it remained in the parking lot of the bar, where McGowan retrieved it the next day, following his release. ECF No. 65-3 at 20, 22. McGowan never received his driver's license back and was obliged to obtain a duplicate made the next week. Id. at 24. Since he was working as a courier, he was unable to work until such time as he obtained a new license. Id.

         McGowan was later charged in the District Court for Prince George's County with disturbing the peace, resisting arrest, and second degree assault. See ECF No. 21 at ¶ 15. The charges were later dropped without explanation. Id.

         On January 15, 2016, McGowan filed the present action in the Circuit Court for Prince George's County. On March 8, 2017, he filed a First Amended Complaint in that court alleging assault and battery, unlawful arrest, detention and confinement, negligence, intentional infliction of emotional distress, and conversion, against individual Prince George's County police officers and the Police Department. Defendants removed the case to this Court on July 6, 2017, asserting as the basis for removal federal question and supplemental jurisdiction.

         McGowan's attorney in the state court action was not a member of the federal bar, and despite the Court's several attempts to reach her, she never responded and never entered an appearance in the case. Having been unable to arrange substitute counsel, McGowan is proceeding pro se.

         On July 24, 2017, Officers Debarros, Marriott, Pina, and Schmick, filed an Answer to the First Amended Complaint. On August 3, 2017, Prince George's County Police Department filed a Motion to Dismiss, noting that it is well-settled Maryland law that county police departments are agencies of their respective counties and, as such, are not capable of suing or being sued. See ECF No. 55 (Order granting Motion to Dismiss without prejudice).

         On September 5, 2017, the Court issued a Letter Order informing McGowan that he was now deemed to be proceeding pro se, requiring him to respond to the Police Department's Motion to Dismiss. On September 20, 2017, McGowan filed a letter “respectfully requesting this case not be dismissed” and asking for the opportunity to proceed pro se. ECF No. 47.

         On September 25, 2017, in response to McGowan's letter, the Court issued a second Letter Order advising him to obtain counsel or to let the Court know if he would like pro bono counsel appointed. He filed a Motion to Appoint Counsel on October 2, 2017. ECF No. 49. On November 20, 2017, John Everett, Esquire, of ChasenBoscolo Injury Lawyers was appointed to undertake a five-hour review of McGowan's claims. On January 26, 2018, after reviewing Attorney Everett's report, the Court sent McGowan a letter indicating that this might be a case that an attorney would be willing to take up on a contingency basis and gave him 60 days to try to obtain an attorney and directed that he inform the Court that he was willing to do so.

         On the same day, the Court issued a Memorandum Order granting the Police Department's Motion to Dismiss without prejudice and granting McGowan leave to file an amended complaint. The Memorandum Order noted that he had 60 days to obtain an attorney, and that until then, the case would be stayed.

         McGowan never filed an Amended Complaint adding Prince George's County as a Defendant[7] or notifying the Court that he would obtain an attorney. On April 11, 2018, the Court issued a pro se Scheduling Order.

         On November 23, 2018, the County filed the present Motion for Summary Judgment. McGowan responded on December 14, 2018. The County filed no Reply.

         II. Analysis

         a. Summary Judgment Standard

         Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The alleged factual dispute must be ...


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